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Thursday, May 17, 2018

Most would be aware of the
fact that the Ministry of Defence and the Army Headquarters had withdrawn the
appeal filed by them in the Supreme Court against grant of substantive ranks to
Short Service Commissioned Officers (both men and women) commissioned under the
old terms (5+5+4 years) as implemented after acceptance of the AV Singh
Committee Report. The benefits had been refused due to a self-created negative
stipulation though no such prohibition had been imposed by the Cabinet which
had extended the benefits to all Permanent and Short Service Officers without distinction.
When the Armed Forces Tribunal had directed the Government to extend the
benefits to affected officers, the decision of the AFT was challenged in the
Supreme Court.

The appeal was however
withdrawn earlier this year on the intervention of the current Raksha Mantri.
The details of the decision can be accessed through this news-report that
appeared in The Week.

Now, the Government has
issued a policy dated 10 May 2018 extending the said benefit to all similarly
placed officers, including those who had not approached Courts. Though
there are additional conditions imposed in the policy which were never imposed
by the Courts, the step is in the right direction since it results in avoidance
of unnecessary litigation on the subject.

‘The
moment that justice must be paid for by the victim of injustice it becomes
itself injustice’, said Benjamin R Tucker.

No
contemporary published work elucidates this quote more than the book, Maimed
by the System, a book that needed, no demanded, to be written. This book
encompasses the struggle and strife of military personnel, veterans, disabled
soldiers and their families who fought the system to get was legally due to
them anyway.

As
such, the book in question, which is a revised edition, has been authored
by Major Navdeep Singh, a practicing advocate at the Punjab and Haryana
High Court and a (former) Territorial Army officer.

The
book is in two parts – the first comprises 22 accounts of the travails and
tribulations of soldiers and their families who have had to fight protracted
battles with a seemingly unsympathetic system, to claim their rights,
post-disability. The second part compiles selected works of the author
published on various platforms. This part also recounts the problems faced by
the men in uniform at the hands of apathetic institutions, governments and
policy makers.

The
idea behind the book is to foreground the difficulties faced by soldiers and
their kin, and to make contemporary society aware of the prevalent situation,
in the hope that it will serve as a catalyst for galvanizing support to change
the narrative. It must be said, that this book could not have come from a more
befitting person, someone who has been a witness and stakeholder on both sides,
having served as a soldier and now is a part of the legal system.

Though
the preface mentions that these are also stories of hope and triumph, they
sometimes leave the reader with a sense of despair. Consider the case of
disabled soldier, Bachan Singh, who fought in Cairo in World War II. Released
by the Army on grounds of disability, he had to fight for six decades to get
his pension, and received it at the age of 98, only to pass away right after.
In those decades of penury, he lived in a Gurudwara for sustenance. It seems
that the system not only takes away the financial support that is due to our
soldiers, but also strips them and their families of their right to a dignified
existence. The adage ‘justice delayed is justice denied’, rings hard and true,
one would think.

Now
the book itself is a relatively easy read and is devoid of unnecessary military
and legal jargon. The stories are succinct, to the point, including only
relevant details. However, the stories could do with direct quotes from the
soldiers and their families, to make the reader feel their pain even more
acutely. Despite this, the book achieves what the author had set out to do. It
is a well-researched book, clearly bringing forth the lackadaisical attitude of
the system towards giving those who have served and lost, what they deserve.
The book reveals how policies are misinterpreted and end up being held above
the Constitution and the law. The author believes that ‘judgments repeatedly
rendered by Courts are not applied to other affected parties based upon principles
settled therein and equally and similarly placed individuals are forced to
litigate on same issues again and again and again.’

However,
as the author says, the aim of this book is to inspire us to do good, and not
complacently sit on our hands. Efforts on his part, and that of others, are
perhaps beginning to bear fruit. The amount of litigation has definitely come
down, but much is yet to be achieved. And that is why this book had to be
written and demands to be read, because all of us have to fight for the rights
of those who fought for us, day in and day out.

Thursday, April 19, 2018

The Ministry of Defence, on
being prodded by the Supreme Court, has issued orders complying with the
decision of the Armed Forces Tribunal related to the pensions of Major Generals
with effect from 01 Jan 2006.

The Supreme Court, in the famous
case Union of India Vs SPS Vains had
laid down the principles for fixation of pension with effect from 01 Jan 1996,
that is, the date of applicability of the 5th Central Pay Commission
(CPC).

However, a somewhat similar
anomaly arose after the 6th CPC too, when affected pre-2006 retiree officers,
again led by General Vains approached the Armed Forces Tribunal which further directed
the Government to give effect to the principles of the decision of the Supreme Court
for the new 6th CPC regime also.

The decision was however challenged
by the Government in the year 2011 in the Supreme Court and it is pending in the
Supreme Court since then. During the said pendency, the Ministry of Defence had
implemented the decision for the litigants in the said case but not for other similarly
placed pensioners and family pensioners. The Supreme Court, in December 2017,
had pointed out that the decision should have been implemented for all similarly
placed officers and not only litigants after which the Government had sought
time to do the needful.

The Ministry has now issued
orders for all other officers and the appeal of the Ministry of Defence is now
more or less infructuous since the relief has been extended by the Government
itself to affected officers.

Earlier this year, in a
tragic coincidence, four officers of the Indian Army passed away on account of
cardiac arrests, in different parts of India, on the same day. Between that day
and today, many more non-operational disease-related deaths have been reported,
and the same have been spiralling upwards since the past many years.

The military is always
perceived to be fitter, stronger and healthier than the civil populace. But this,
sadly, is a myth. When compared to civilian government employees, members of
the military and other uniformed forces face a considerably higher stress and
strain of service which affects health in a detrimental manner, a fact which is
universally recognized by all major militaries. Incurring a disability while in
service entitles soldiers to disability benefits on retirement and higher death
benefits to the family in case of death, and the applicable rules provide a
presumption of ‘service-connection’ of disabilities which are acquired during
service. However, in order to avoid such payouts, the system has been wrongly branding
such disabilities as “neither attributable to, nor aggravated by military service”
which is not only against ground realities, but also against rules and
decisions of Constitutional Courts.

Though the Courts, the
highest of political executive, Government’s legal advisors, Committees set up
by the Defence Ministry and also the military medical authorities have time and
again ordained sensitivity towards such disabilities, liberal grant of
disability pensions and also withdrawal of appeals filed by the Ministry
against disability benefits of its own disabled soldiers in the Supreme Court,
it is highly unfortunate that the hands of senior political leadership and
higher bureaucracy have been restrained by misleading and mischievous file
notings initiated by lower bureaucracy to deny such benefits to soldiers and
projecting them as somewhat greedy. To take an example, to elicit a negative
response from the top, the financial entities of the Defence Ministry have
instilled a feeling that such disabilities can occur in civilians too and hence
uniformed personnel do not require any special dispensation- a thoroughly
erroneous supposition.

Firstly, file initiators have
hidden from the hierarchy that this thought-process militates against the basic
entitlement rules which list even conditions such as heart disease,
hypertension and neurosis as diseases affected by stress and strain of service.

Moreover, what is glossed
over is the fact that there are many unique stressors in the military and hence
any parallel sought to be drawn with civil employees on this subject is inherently
flawed. For example, soldiers and officers of uniformed services spend most of
service away from family and lead regimented lives under strict military law,
often in barracks and predominantly away from society. There is also an acute inability
of fulfilling domestic and familial commitments. Freedoms are curtailed which
may seem innocuous to the untrained eye but it takes a toll on a person’s health.
Illustratively, even when posted in a ‘peace’ area, to undertake regular
activities such as visiting the market a soldier needs to seek permission, sign
multiple forms and be back in time for the roll call. A soldier is not
available to provide or receive emotional support when required, even sexual
needs remain unfulfilled. Again some seemingly benign examples- what does a
person do when one’s child gets hurt? Kiss and hug the child, hold the child
close, a luxury not obtainable by members of the uniformed forces. What does
one do when there is a property dispute or any other administrative requirement?
Follow it up with the local authorities and courts, something impracticable for
men and women of the forces since they mostly remain away from home. The list
is endless. All such factors give rise to a feeling of helplessness leading to stress
and strain thereby aggravating the mental and physical conditions of soldiers
and this also is the reason which prompted the Supreme Court to once remark
that a soldier remains torn between the call of duty and family commitments.

It is however lamentable
that financial entities of the Defence Ministry are able to tide over rules, binding
judicial dicta and also political will and are able to elicit incorrect
reactions from decision-makers. Apart from soldiers, a tirade was unleashed
against senior officers of the military stating that high ranking officers have
also been granted disability benefits. But why not? If a General is suffering
from a disability known to be aggravated by stress and strain of service, why
should she or he be denied because of rank? Some senior officers are at an even
higher risk because of an elevated age bracket and greater responsibility.
There have been multiple examples of Generals in the recent times suffering
cardiac arrests and undergoing heart and other procedures due to extreme
stress, can such live examples be brushed aside? People also speak of cases of
senior officers hiding their disabilities in order to remain eligible for
promotions. If true, then it is purely an administrative infraction for which
remedy lies elsewhere and this has no connection with disability benefits which
are purely linked with a person’s physical condition at the time of joining
service vis-a-vis retirement. Moreover, it also means that the system needs to
plug the holes in the annual medical examinations and at the same time harmonize
and rationalize its promotional policies, make them practical and bring them in
line with modern times so that people do not hide their medical status.

With a sensitive and
sensitized Defence Minister, one hopes that the law as ordained by Courts, recommendations
of experts and the word of the political executive prevail ultimately, and not sadistic
file notings of penny-counting accountants who bring a bad name to the
establishment and avoidable distress to the military community. The focus also
should shift to improving the health profile of the military in wake of heavily
stressful conditions, and not saving money through a ham-handed approach.

---

Major
Navdeep Singh is a practicing lawyer at the Punjab & Haryana High Court. He
is also the author of ‘Maimed by the System’. He writes on public policy, law
and the military.

Sunday, April 15, 2018

The Yale University has
released the draft principles for ‘governing administration of justice through
military tribunals’, an updated and amended version of the “Decaux Principles”
on the same subject circulated by the United Nations Commission on
Human Rights in 2006. The principles, titled the “The Yale Draft” have
attempted to resolve a few contentious issues and have taken into account
intervening developments and have been drafted in a manner to clear the path
for formal approval by the UN Human Rights Council and the General Assembly.

In recent years, the system
of military justice has remained in the news, from issues related to command
influence and independence to the recent trial of civilians by secret military
courts in nations such as Pakistan without affording full rights to
the accused. Kulbhushan Jadhav of India was also tried by one such secret
military tribunal in Pakistan, and sentenced to death, which became an
international flashpoint.

The Yale Draft opens with
the principle that military tribunals (courts) must be established keeping in
view the principle of separation of powers and should be a part of the regular
judicial system and should not function under the executive branch. The draft
also states that the guarantees of fair trial offered by Article 14 of the
International Covenant of Civil and Political Rights (ICCPR) must be adhered by
military courts further stating that military courts must be ‘independent,
impartial and competent’ with necessary legal training and qualification. It
has also been asserted that Military courts have no jurisdiction to try
civilians except where there are very exceptional circumstances justifying such
a trial. The principles also reiterate respect of humanitarian law, public
hearings and transparency in military trials and recourse to civil courts as
guaranteed to civilians. The principles also call for periodic review of codes
of military justice by an independent body.

Friday, March 23, 2018

The controversial cap of Rs
10,000 per month recommended by the 7th Central Pay Commission and
thereafter blindly accepted by the Ministry of Finance, which had caused much
heartburn amongst the military community, now stands removed.

There is however a rumour doing
the rounds that some extra conditions have been imposed and that the concession
shall only be admissible for Government run institutions. The same is not
correct. The concession is admissible for all Government recognized
institutions.

In fact, the conditions mentioned
in the fresh letter issued on 21st March 2018 are exactly the same
as were in force prior to the capping. The same conditions were mentioned in the
last letter issued in the year 2010 after the acceptance of the recommendations
of the 6th Central Pay Commission.

Thanks to all those who
assisted in getting this controversial action reversed.

Sunday, February 25, 2018

There is unfortunate news
from the Supreme Court with respect to the case of pre-1996 retired Majors with
21 years of service who had claimed the pension of Lt Col and whose cases were
allowed by various benches of the Armed Forces Tribunal.The Supreme Court, while hearing
certain appeals filed by the Government and others filed by some affected
officers, has held that the said benefit is not available to those who retired
prior to 1996. It may be recalled that the controversy had emerged from the situation wherein Majors who retired with 21 years or more commissioned service after 01-01-1996 had been granted the pension as admissible to the rank of Lt Col, while those who retired prior to 01-01-1996 with similar length of service, were being paid the pension of a Major.

The Supreme Court has agreed
with the arguments of the Union of India that the stipulation of grant of the
scale of Lt Col to Majors with 21 years or more service was only available to
those who were in service as on 01-01-1996 as per the Govt orders issued in
1997 and it dealt with pay and not pension and that also the Govt had itself equalized
pensions of pre-1996 and post-1996 retirees in the year 1999. The Court has
also relied upon an earlier decision in Col BJ Akkara Vs Union of India of the
year 2006 in reaching the said conclusion.

I however personally feel
that the following aspects were not placed before the Hon’ble Supreme Court
during the course of the examination of the issue:

A.The
anomaly did not actually flow from the Govt letter on pay of the year 1997 but
emanated from later letters issued in the years 2012, 2013 and 2015 (with
financial effect from 2006) wherein it was provided that Majors with 21 years
of service who retired between 1996 and 2006 would be granted the pension of a Lt Col while those
who retired prior to 1996 would continue receiving the pension of a Major.
Hence, the controversy did extend to pension and was not restricted to pay.

B.The equalization
of pension as professed by the Govt of India before the Supreme Court came to
an end with effect from 2006, that is, from the 6th Central Pay Commission regime. As on date, the basic pension of Majors with 21 years
of service retiring after 1996 is Rs 81,502 while those retiring prior to 1996
is Rs 58,673. Hence the pension equation letter of 1999 cited by the Govt before
the Court became redundant with effect from 2006 based upon the above mentioned
pension letters issued in the years 2012, 2013 and 2015 which were not brought
to the knowledge of the Court. Till the 6th Central Pay Commission, there was no disparity or negligible disparity due to overlapping scales. There has been no discussion or argument on the
fact of issuance of letters issued by the Govt at later stages disturbing the
equalisation of pension. The net result is the difference of pension, not pay,
as reflected by the above figures. The net result also is that officers of the
same rank retiring with the same length of service but during different periods
have been saddled with a vast difference in pensions.

C.In
Col BJ Akkara’s case, relied upon by the Govt, the Govt had not placed full
facts before the Court and the said case was later distinguished by the Supreme
Court itself in Civil Appeal 10640/2013 KC Bajaj Vs Union of India decided on
27-11-2013 when the Court came down heavily upon the Govt for its incorrect stand
and also for not projecting the correct facts. After this decision, the effect
of Col BJ Akkara’s case was then nullified by the Govt itself by issuing
letters granting the benefit to affected pre and post 1996 retirees based upon
the later ruling of the Supreme Court in KC Bajaj’s case. The benefits were
also extended to those officers of the defence services who were earlier
refused the same after the decision in Col BJ Akkara’s case. This issue was explained earlier in this blog here. The later decision in KC Bajaj’s case has
not been brought to the notice of the Court.

D.The
Court has not been apprised of the similar decision in Civil Appeal 1123/2015 State
of Rajasthan Vs Mahendra Nath Sharma decided on 01-07-2015 which dealt with a similar
controversy of pensioners of the State of Rajasthan wherein the issue was
decided in favour of pensioners where also the State was claiming that the
benefits were only applicable to pensioners who were in service on a particular
date in the State.

The
important points as above were argued and considered in various decisions by
the Chandigarh Bench of the Armed Forces Tribunal, including in the case titled
Maj Tarlok Singh Vs Union of India (not challenged by the Govt till now), but were perhaps not before the Hon’ble Supreme
Court since the judgements that the Apex Court was examining did not have these
arguments or issues on record. As things stand now, the Supreme Court decision
is binding on all authorities till the time perhaps the matter again reaches the Supreme Court
in other decisions decided in favour of pensioners, as and when those are challenged by the Govt, and when all points can be
brought before the Hon’ble Court in the right perspective by those representing
the parties.

Also, to
clarify, this decision however currently affects only pre-1996 retiree Majors
with 21 years of service and not those Majors who retired between 01-01-1996
and 14-01-2000 with 20 years of service and were not granted the benefits of
the rank of Lt Col due to late issuance of the Govt letter on 14-01-2000 and
who were granted relief on judicial intervention. The said category of officers
is not affected by this judgement.

Wednesday, February 7, 2018

My reaction piece in the DNA on the recent stormy
exchange between Major Gaurav Arya and Mr Abhinav Kumar, IPS :

Different
Uniforms, Same Flag

Navdeep Singh

That the Police and the Army
share commonalities, including the somewhat similar structure of rank badges,
is something that cannot be ignored. But to expect the Police to be completely militarised
or to follow the same ethos or training, or be officered by the military, as
professed by some military veterans, in all humility, is an unreasonable idea.

This topic I tend to avoid
but there was extensive debate on the subject recently, generated by a strong opinion
piece authored by a former Army officer, matched by an equally solid retort by
a serving officer of the Indian Police Service (IPS).

The
reason for friction

One issue that continually
disturbs officers of the military is faster promotions in the IPS and thereby
the heavier and at times exaggerated brass on comparatively younger police
shoulders. While true to a large extent, historical parities having been unduly
disturbed and the military having slid down the pecking order, we still need to
give it deeper thought, though no doubt much has been written on it, including
by this author. The problem is not faster promotions in the IPS but the much slower
career growth in the military due to a variety of reasons, and the solution to
which shall remain vexed because of the requirement of maintaining a steep
pyramid. Agreed that there is bound to be dejection when an IPS officer of the
2000 batch wears a Major General’s rank badges in 2018 while his military batch-mates
are Lieutenant Colonels or at best Colonels, or when it is analysed that while
the senior-most police officer in a State was equal to a Colonel or Brigadier
at one time but today wears the ranks of a Lieutenant General, but then one
cannot blame the IPS for having an optimum promotional and cadre management at
par with other comparable government services, neither can one expect police
officers to refuse promotions in order to please the military! Rather than such
prestige battles, the government and the political executive must be convinced
to render serious thought to the massive stagnation in the military and slower
than satisfactory career advancement. Of course, certain lopsided
recommendations of successive pay commissions haven’t helped.

Different
strokes for different folks

Much has been stated about the
desirability of induction of former military officers and personnel in the state
police to ‘improve’ it or training IPS officers in military academies or providing
the command of Central Armed Police Forces (CAPFs) to army officers. While this
appears attractive at the first blush, one has to realise the fluffiness of
such broad statements. Firstly, the job of the army and the police is
dissimilar. While the former has to destroy the enemy, the latter has to
protect the community. The similarities hence end at the ceremonial drill.
While soldiers need to operate in groups with competent leaders, state police
personnel are expected to work even as stand-alone entities and to apply mind
to investigation and crime prevention with certain powers under law being
similar for all “Police Officers”- from Constable to the Director General of
Police. Moreover, the police involves public-dealing while the military
operates on insulated terms. While the police is required to be trained in crowd
control and often fires warning shots in the air, the military is trained to
fire on target. Hence a military academy is not the apt place for learning skills
of lathi charge or nuances of
investigation or CrPC and IPC. Ditto for the CAPFs. Though there is certain
overlapping of roles in the case of border guarding forces, there is no
similarity between forces such as CRPF and the army, these are best officered
with their own cadre or from the IPS since they are meant to operate in close
coordination with the civil administration.

Turf
battles

In the dynamic security
scenario of date, there might be shared areas of operation, but that does not take
away the core functionality of different forces. It shall be in the interest of
all services and forces, who incidentally serve the same flag, to develop
mutual trust and serve shoulder to shoulder when required. To be honest, the
voices against the police are shriller from the side of some military veterans,
who at times, do not realise that for political interference and systemic
problems plaguing the police, individual personnel cannot be blamed and those
individuals come from the same neighbourhoods as the military and neither are
they carrying out less onerous duties. If a newly commissioned Lieutenant has
to command his men in arduous conditions, a young Assistant Superintendent of
Police has to look after the law & order of a complete Sub Division with
multiple police stations, a job not less exacting. To compare with foreign
police services is also not in order since in many nations the induction into
the police is primarily at only one level, and personnel get promoted all the
way up to apex police appointments, while in India recruitment is at four
grades. With diffidence I submit that our military community must realise that
‘military training’ is not the magic wand for curing all ills and other
professions play an equal role in nation-building. There are many in-house aspects that require honest
introspection, than expending energy looking into shortcomings of others.

National interest ordains
that all services must work together, hand in hand, shoulder to shoulder, to
protect the concept of India. The political executive must however ensure that legitimate
career expectations and social standing of the men & women in the military are
not ignored and decisions on human management policies are taken in a
well-rounded manner after due stakeholder consultation.